{"id":168280,"date":"2010-06-28T00:00:00","date_gmt":"2010-06-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chohla-vs-2-it-on-28-june-2010"},"modified":"2016-10-20T02:34:15","modified_gmt":"2016-10-19T21:04:15","slug":"chohla-vs-2-it-on-28-june-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chohla-vs-2-it-on-28-june-2010","title":{"rendered":"Chohla vs 2 It on 28 June, 2010"},"content":{"rendered":"<div class=\"docsource_main\">Gujarat High Court<\/div>\n<div class=\"doc_title\">Chohla vs 2 It on 28 June, 2010<\/div>\n<div class=\"doc_author\">Author: A.L.Dave,&amp;Nbsp;Honourable Ms.Justice H.N.Devani,&amp;Nbsp;<\/div>\n<pre>   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/416\/2007\t 18\/ 20\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 416 of 2007\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE A.L.DAVE \n\n \n\n\t\t\tand \nHONOURABLE\nMS.JUSTICE H.N.DEVANI\n \n \n=========================================================\n<\/pre>\n<p><span class=\"hidden_text\">1<\/span><\/p>\n<p>Whether<br \/>\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n<\/p>\n<p><span class=\"hidden_text\">2<\/span><\/p>\n<p>To be<br \/>\n\t\t\treferred to the Reporter or not ?\n<\/p>\n<p><span class=\"hidden_text\">3<\/span><\/p>\n<p>Whether<br \/>\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n<\/p>\n<p><span class=\"hidden_text\">4<\/span><\/p>\n<p>Whether<br \/>\n\t\t\tthis case involves a substantial question of law as to the<br \/>\n\t\t\tinterpretation of the constitution of India, 1950 or any order<br \/>\n\t\t\tmade thereunder ?\n<\/p>\n<p><span class=\"hidden_text\">5<\/span><\/p>\n<p>Whether<br \/>\n\t\t\tit is to be circulated to the civil judge ?\n<\/p>\n<p>=========================================================<\/p>\n<p>CHOHLA<br \/>\nAMRABHAI TEJABHAI &#8211; Appellant(s)<\/p>\n<p>Versus<\/p>\n<p>THE<br \/>\nSTATE OF GUJARAT &amp; 1 &#8211; Opponent(s)<\/p>\n<p>=========================================================<\/p>\n<p>Appearance<br \/>\n:\n<\/p>\n<p>MR<br \/>\nYATIN  SONI for Appellant(s) : 1 &#8211; 7.\n<\/p>\n<p>MR MAULIK G NANAVATI APP for<br \/>\nOpponent(s) :\n<\/p>\n<p>1,<br \/>\n=========================================================<\/p>\n<p>CORAM<br \/>\n\t\t\t:\n<\/p>\n<p>HONOURABLE<br \/>\n\t\t\tMR.JUSTICE A.L.DAVE<\/p>\n<p>and<\/p>\n<p>HONOURABLE<br \/>\n\t\t\tMS.JUSTICE H.N.DEVANI<\/p>\n<p>Date<br \/>\n:   28\/06\/2010  <\/p>\n<p>CAV JUDGMENT<\/p>\n<p>(Per<br \/>\n: HONOURABLE MR.JUSTICE A.L.DAVE)<\/p>\n<p>\tAn<br \/>\nincident occurred on 21.4.2005 at about 13-15 hours in Subhashnagar<br \/>\nchowk area of Bhavnagar where it is alleged that one Vipul @ Munno<br \/>\nChandubhai Sarvaiya was attacked by, in all, 13 persons. Out of these<br \/>\n13 persons, three were juvenile and, therefore, were referred to the<br \/>\nJuvenile Justice Board. They were (i) Pancha Bharwad, (ii) Lala Kava<br \/>\nand (iii) Rohit Nanji. They were alleged to be armed with stick,<br \/>\nknife and stick respectively. The following persons came to be tried<br \/>\nby the Sessions Court, Bhavnagar in Sessions Case Nos.152 of 2005 and<br \/>\n215 of 2005. They are &#8211;\n<\/p>\n<p>(i)\t\tAmrabhai<br \/>\nTejabhai<\/p>\n<p>(ii)\t\tChithar<br \/>\nTejabhai<\/p>\n<p>(iii)\tBhopa<br \/>\nTejabhai<\/p>\n<p>(iv)\t\tTino<br \/>\n @ Karsan Tejabhai<\/p>\n<p>(v)\t\tNatha<br \/>\nTejabhai<\/p>\n<p>(vi)\t\tBhima<br \/>\nTejabhai<\/p>\n<p>(vii)\tRaju<br \/>\nDevabhai<\/p>\n<p>(viii)\tNaran<br \/>\nBharwad<\/p>\n<p>(ix)\t\tDeva<br \/>\nPanchabhai<\/p>\n<p>(x)\t\tRana<br \/>\nPanchabhai<\/p>\n<p>1.1\tThey<br \/>\nwere all charged with offence punishable under Sections 302, 144,<br \/>\n147, 148, 149 of IPC and Section 135 of the Bombay Police Act. They<br \/>\npleaded  not guilty to the charge and claimed to be tried.<br \/>\nConsidering the evidence led by the prosecution, the trial Court<br \/>\nfound that the prosecution failed to prove  case against original<br \/>\naccused Nos.8, 9 and 10, namely, Naran Bharwad, Deva Panchabhai and<br \/>\nRana Panchabhai respectively. The trial Court, therefore, acquitted<br \/>\nthem of the charges. On the other hand, the trial Court found that<br \/>\nthe prosecution succeeded in proving the case against rest of the<br \/>\naccused i.e. accused Nos. 1 to 7 and convicted them of offence<br \/>\npunishable under Sections 302, 144, 147, 148, 149 of IPC and Section<br \/>\n135 of the Bombay Police Act. They were sentenced to imprisonment for<br \/>\nlife with a fine of Rs.500\/- each, in default, to undergo SI for 15<br \/>\ndays for the offence punishable under Sections 302, 144, 147, 148 and<br \/>\n149 of IPC, whereas for the offence punishable under Section 135 of<br \/>\nthe Bombay Police Act they were sentenced to imprisonment for one<br \/>\nmonth with a fine of Rs.250\/-, in default, SI for 5 days. The<br \/>\nsentences were ordered to run concurrently. This decision was<br \/>\nrendered by judgment and order dated 22.11.2006 and hence this<br \/>\nappeal. The convicts, original accused Nos. 1 to 7, have preferred<br \/>\nthis appeal.\n<\/p>\n<p>1.2\tIt<br \/>\nwould be appropriate to note that appellant No.6, Bhima Teja, had<br \/>\nabsconded pending the appeal. However, he has now been restored to<br \/>\nthe prison, whereas accused No.7, Raju Deva, is still absconding.<br \/>\nRest of the persons are in jail.\n<\/p>\n<p>2.\tAs<br \/>\nper the prosecution case, the incident was witnessed by Harshaben<br \/>\n(Exh.77) who is mother&#8217;s sister of the deceased  and witnesses<br \/>\nLaljibhai (Exh.86) and Pareshbhai (Exh.87). FIR was lodged by<br \/>\nHarshaben and, according to her, while she was going to see her<br \/>\nsister along with the deceased, the appellants along with the<br \/>\nacquitted accused and the juvenile offenders attacked the deceased.<br \/>\nThey were all armed with deadly weapons like sword, knife, gupti,<br \/>\nkoyto, sickle and sticks. They collectively attacked the deceased and<br \/>\nthe deceased succumbed to the injuries. He was taken to the hospital<br \/>\nby the complainant and others, where he was declared dead. On the<br \/>\nbasis of the FIR lodged by Harshaben (PW-27), offence was registered<br \/>\nand investigated by &#8216;B&#8217; Division Police Station, Bhavnagar. After<br \/>\ninvestigation, the investigating agency having found sufficient<br \/>\nmaterial connecting the accused persons filed a charge-sheet in the<br \/>\nCourt of CJM, Bhavnagar who, in turn, committed the case to the Court<br \/>\nof Sessions and additional charge-sheet was filed, as some of the<br \/>\naccused were absconding, and that is how two Sessions cases, namely,<br \/>\nSessions Case No.152 of 2005 and 215 of 2005 came to be registered.<br \/>\nCharge was framed against the accused persons at Exh.18 to which they<br \/>\npleaded not guilty and claimed to be tried. At the end of the trial,<br \/>\nthe trial Court gave the verdict, as stated hereinabove.\n<\/p>\n<p>3.\tHeard<br \/>\nlearned advocate Mr Soni for the appellants and learned APP Mr Maulik<br \/>\nNanavati for the respondent-State.\n<\/p>\n<p>4.\tLearned<br \/>\nadvocate Mr Soni submitted that whole of the prosecution case  is a<br \/>\npiece of concoction. According to Mr Soni, though, as per the<br \/>\nprosecution case, there were three witnesses, two of the independent<br \/>\neye-witnesses have not supported  the prosecution and the story<br \/>\ncanvassed by the third eye-witness, first informant, Harshaben is not<br \/>\nbelievable. Her version about the incident gets no corroboration from<br \/>\nany other piece of evidence. On the contrary, her version becomes<br \/>\ndoubtful in light of the medical evidence.  Mr Soni submitted that<br \/>\nthe first informant herself has sworn an affidavit to show that the<br \/>\ninvestigating agency did not record her FIR as stated by her. Not<br \/>\nonly that, she adds that names of certain persons were included in<br \/>\nthe FIR as the assailants,  though she had not given their names. Mr<br \/>\nSoni submitted that the investigation, therefore, is not independent<br \/>\nand unbiased. Keeping this aspect in mind, if evidence of Harshaben<br \/>\nis seen, Mr Soni submitted, that there are several contradictions,<br \/>\nwhich in the ordinary course may not be so significant, but in the<br \/>\nfacts of this case, would assume significance. The contradictions<br \/>\nindividually may not be significant but collectively they would<br \/>\nrender the prosecution case unbelievable or at least would bring the<br \/>\ncase under shadow of reasonable doubt. Mr Soni submitted that as per<br \/>\nthe say of Harshaben she and the deceased started off from home<br \/>\nimmediately after taking meals and within few minutes thereafter the<br \/>\nincident occurred. Necessarily, therefore, there should be presence<br \/>\nof food in the stomach of the deceased. However, the stomach was<br \/>\nfound to be empty, which would mean that the food was taken at least<br \/>\n2 to 3 hours prior to death as admitted by the doctor. Harshaben is,<br \/>\ntherefore, not telling the whole truth. Similarly, about the timing<br \/>\nof Harshaben going to her sister&#8217;s place, there are contradictions.<br \/>\nThis would be important, according to Mr Soni, because her presence<br \/>\nitself is doubtful.\n<\/p>\n<p>4.1\tMr<br \/>\nSoni submitted that FIR is given belatedly after deliberations. When<br \/>\nthe deceased was taken to the hospital and the Doctor inquired about<br \/>\nthe names of the assailants, he failed to get the names. Similar was<br \/>\nthe situation so far as police officer is concerned. If first<br \/>\ninformant was an eye-witness to the incident, she would have<br \/>\ncertainly revealed the names of the assailants at that very point of<br \/>\ntime. Mr Soni, therefore, submitted that the whole prosecution case<br \/>\nis nothing but concoctions and, therefore, the trial Court erred in<br \/>\nholding that the prosecution proved the case against the seven<br \/>\nappellants beyond reasonable doubt.\n<\/p>\n<p>4.2\tMr<br \/>\nSoni submitted that the appeal may, therefore, be accepted and the<br \/>\nappellants be acquitted of the charges levelled against them.\n<\/p>\n<p>5.\tThe<br \/>\nappeal is opposed to by learned APP Mr Nanavati. According to the<br \/>\nlearned APP, the evidence of Harshaben needs serious consideration.<br \/>\nIt is true that two other eye-witnesses have not supported the<br \/>\nprosecution case but that, by itself, would not render evidence of<br \/>\nHarshaben doubtful. The contradictions or discrepancies which are<br \/>\npointed out by the learned advocate for the appellants are minor and<br \/>\ninsignificant and do not affect the prosecution case. The appeal may,<br \/>\ntherefore, be dismissed.\n<\/p>\n<p>6.\tWe<br \/>\nhave examined the record and proceedings in the context of rival<br \/>\nsubmissions.\n<\/p>\n<p>6.1\tIt<br \/>\nmay be mentioned, at this stage, that accused No.7 is absconding.<br \/>\nHowever, since other convicts are in jail, it is expedient to hear<br \/>\nand decide the appeal  without waiting for accused No.7 to be brought<br \/>\nbefore the Court, particularly when he is represented by an advocate<br \/>\nand, therefore, his interest would be protected. Abscondence is an<br \/>\nindependent offence by itself and for that action shall be initiated<br \/>\nseparately. This need not deter us from hearing and deciding this<br \/>\nappeal in above stated fact situation regarding other convicts.\n<\/p>\n<p>7.\tInterestingly,<br \/>\nthe prosecution has examined, in all, 38 witnesses, out of which,<br \/>\nonly 12 witnesses have supported the prosecution case and rest of the<br \/>\nwitnesses have been declared hostile to the prosecution. Out of the<br \/>\n12 witnesses supporting the prosecution case, four are police<br \/>\nofficers, two are doctors, two are government servants and four are<br \/>\nprivate witnesses. Out of the four private witnesses, who support the<br \/>\nprosecution case, only one witness i.e.  first informant, Harshaben<br \/>\nis an eye-witness. The evidence of rest of the three witnesses does<br \/>\nnot throw any light on the prosecution case or does not strengthen<br \/>\nthe case in any manner.\n<\/p>\n<p>8.\tDifferently<br \/>\nput, out of the 12 supporting witnesses, only one witness, has<br \/>\npersonal knowledge about the incident. Against this, the prosecution<br \/>\nhad projected two other witnesses as eye-witnesses to the incident,<br \/>\nnamely, Laljibhai (Exh.86) and Pareshbhai (Exh.87) who have not<br \/>\nsupported the prosecution case and have been declared hostile.\n<\/p>\n<p>9.\tThe<br \/>\nabove analysis would go to show that the entire prosecution case<br \/>\ndepends on evidence of first informant Harshaben (Exh.77). In such a<br \/>\nsituation, it would be prudent to give a close scrutiny to such<br \/>\nevidence before accepting the same as truthful and reliable. It will<br \/>\nhave to be tested with other available corrective and contemporaneous<br \/>\nevidence.\n<\/p>\n<p>10.\tHarshaben<br \/>\nis examined as PW-27 at Exh.77. According to her, she had gone to<br \/>\nSubhashnagar chowk at her parental house and after having lunch she<br \/>\nand Munno, the deceased, started off together. Munno is her sister&#8217;s<br \/>\nson. They had started off together for going to the house of<br \/>\nSarojben. When they reached near Subhashnagar chowk, Raju Deva and<br \/>\nPachabhai along with other persons came there and dragged Munna and<br \/>\nthereafter assaulted him. There were about 8 to 10 other persons<br \/>\nbelonging to Bharwad community and none of them paid any heed to the<br \/>\nrequest made by them. A sword blow was given on the neck of the<br \/>\ndeceased. Amra Teja, Raju Deva and Pancha Sajan were armed with<br \/>\nsword.  Rest of the brothers of Amra Teja also indiscriminately<br \/>\nassaulted the deceased. The deceased fell to the ground. The witness<br \/>\nsays that she went for calling her sister and mother and then went to<br \/>\nthe place of incident in an auto-rickshaw. The deceased repeatedly<br \/>\nrequested to leave him but Pancha Sajan and others persisted the<br \/>\nassault.\n<\/p>\n<p>11.\t\tThe<br \/>\nwitness has been cross-examined at length where she states that they<br \/>\nhad started off after having lunch at about 12-15 to 12-30 p.m.. It<br \/>\nalso emerges from her cross-examination that clothes of the first<br \/>\ninformant, Harshaben, and other persons who took the deceased to the<br \/>\nhospital in an auto-rickshaw were not stained with blood, although it<br \/>\nemerges that the deceased had bled profusely. It also emerges that<br \/>\nher mother and sister had taken Vipul @ Munno (the deceased) in their<br \/>\nlap. From the cross-examination of this witness, it also emerges that<br \/>\nthe FIR was lodged at about 1-30 p.m. and her signature was obtained<br \/>\naround that time. She admits that names of the assailants were<br \/>\nwritten by the police in the FIR.\n<\/p>\n<p>12.\tBefore<br \/>\ngoing further, it would be appropriate to refer to Exh.80, which is a<br \/>\ncommunication written by first informant, Harshaben, to PI, &#8216;B&#8217;<br \/>\nDivision Police Station, Bhavnagar where she states that her FIR is<br \/>\nnot recorded as dictated by her and that she has not involved, (i)<br \/>\nRanabhai Panchabhai Bharwad (ii) Devabhai Panchabhai Bharwad, (iii)<br \/>\nLalabhai Kavabhai Bharwad, (iv) Rohitbhai Najabhai Bharwad and (v)<br \/>\nNaranbhai Chhothabhai Bharwad. She states that these five persons are<br \/>\nnot involved in the incident at all. The communication indicates that<br \/>\nthese five persons had not participated in the incident at all and<br \/>\nhave not committed any offence. She has stated that the names of<br \/>\nthese persons have been incorporated in the FIR by somebody with a<br \/>\nview to weaken the prosecution case. The application is supported by<br \/>\nan affidavit sworn by the first informant. The affidavit is on same<br \/>\nlines, which is sworn on 3.6.2005. The FIR is on record at Exh.78<br \/>\nwherein these five persons are attributed with weapons and a specific<br \/>\ncharge of assault by them is made.\n<\/p>\n<p>13.\tKeeping<br \/>\nthe above evidence in mind, if the case of the prosecution is<br \/>\nappreciated, it has to be recorded that barring the first informant,<br \/>\nHarshaben, two other eye-witnesses have not supported the prosecution<br \/>\ncase. Majority of the other independent witnesses have chosen not to<br \/>\nsupport the prosecution case. Such witnesses are mainly the Panch<br \/>\nwitnesses. The discovery, recovery etc., therefore, cannot be said to<br \/>\nhave been properly proved by the prosecution.\n<\/p>\n<p>14.\tThe<br \/>\nevidence of solitary eye-witness, Harshaben, cannot be outrightly<br \/>\nrejected, but would certainly call for a closer scrutiny. In the<br \/>\nbackdrop of the nature of evidence, decision of lives of so many<br \/>\npersons cannot be taken without giving a close scrutiny to the<br \/>\nevidence of solitary eye-witness. At the same time, evidence of<br \/>\neye-witness in such cases, cannot be rejected only because other<br \/>\nwitnesses have not supported the prosecution case. To assess whether<br \/>\nthe evidence of solitary eye-witness, Harshaben, inspires confidence<br \/>\nor not, we will have to examine other pieces of evidence led by the<br \/>\nprosecution.\n<\/p>\n<p>15.\tThe<br \/>\nevidence in the form of a letter addressed by the first informant to<br \/>\nPI, &#8216;B&#8217; Division Police Station on 2.6.2005, which is on record at<br \/>\nExh.80 and supported by an affidavit, would indicate that the FIR  is<br \/>\nnot recorded by the police agency as given by the first informant and<br \/>\nhas falsely implicated at least five persons. The matter does not end<br \/>\nby incorporating names of such persons, but such persons are<br \/>\nattributed specific weapons and specific role in the FIR. This would<br \/>\nmean that the investigation is not carried out independently and<br \/>\nwithout bias. This is the case of the first informant herself. If<br \/>\nfive persons are falsely included in the FIR by the police agency, it<br \/>\nwould be unsafe to proceed on a premise that the rest of the evidence<br \/>\nis honestly collected and is genuine. Possibility of a total<br \/>\nconcoction cannot be ruled out.\n<\/p>\n<p>16.\tWith<br \/>\nthe above major defect in the prosecution case, the evidence of<br \/>\neye-witness, Harshaben, has to be assessed.  This, we say, because<br \/>\ncertain discrepancies which may be considered as insignificant<br \/>\nordinarily, would be of relevance and significance in the instant<br \/>\ncase.\n<\/p>\n<p>17.\tAccording<br \/>\nto the first informant, Harshaben, she went to her parental house as<br \/>\nshe wanted to visit her another sister. She has stated that she left<br \/>\nher home at about 11-30 a.m.  to 12 noon and that it takes about half<br \/>\nan hour to reach her parental home from her home. Against this,<br \/>\nwitness, Mitesh, who is her sister&#8217;s son (Exh.90) states that<br \/>\nHarshaben came to his house at about 9.00 to 9.30 a.m. in the<br \/>\nmorning.\n<\/p>\n<p>17.1\t\tSimilarly,<br \/>\naccording to Harshaben, she had her meals along with the deceased at<br \/>\nabout 12-15 to 12-30 hours and thereafter they left and the incident<br \/>\noccurred at about 1-15 p.m., meaning thereby, the time lag between<br \/>\nmeals and the incident was about 45 minutes. Against this, the<br \/>\nDoctor&#8217;s evidence is that the stomach of the deceased and the<br \/>\nintestines were empty. The Doctor has also stated that empty stomach<br \/>\nwould mean that the deceased must have taken meals at least 2 to 3<br \/>\nhours prior to his death. The medical evidence, therefore, not only<br \/>\ndoes not corroborate the version of the eye-witness but to an extent<br \/>\nfalsifies the evidence.\n<\/p>\n<p>17.2\t\tSimilarly,<br \/>\nabout the timing of the FIR, the version of the first informant,<br \/>\nHarshaben, is inconsistent. At one stage, it is stated that she put<br \/>\nher signature at about 1-30 to 2-00 p.m. in the hospital, whereas the<br \/>\nPSI in his evidence has stated that he reached the hospital at about<br \/>\n2-40 p.m. and thereafter made inquiries about the details of the<br \/>\nassailants. The officer, who recorded the FIR, Mahendrasinh Parmar<br \/>\n(Exh.113) states that he recorded the FIR after the Inquest Panchnama<br \/>\nwas drawn. The Inquest Panchnama is at Exh.31, which is drawn between<br \/>\n15-00 to 15-50 hours. Obviously, therefore, the FIR was after 15-50<br \/>\nhours. The evidence of the first informant about giving the FIR is<br \/>\nalso inconsistent. It also emerges  from the evidence of the officer<br \/>\nwho recorded the FIR, namely, Mahendrasinh Parmar (Exh.113) that he<br \/>\nmade inquiries about the names of the assailants upon going to the<br \/>\nhospital but nobody disclosed the same. The first informant also<br \/>\nadmits that she did not give the names of the assailants with weapons<br \/>\nbut they were written by the police. She in terms states that the<br \/>\nnames of the assailants were written by the police.\n<\/p>\n<p>17.3\t\tSimilarly,<br \/>\nthe Doctor before starting the post-mortem had made inquiries from<br \/>\npolice for about  5 to 10 minutes about the details of the assailants<br \/>\nbut the same were not disclosed to him by the police.             The<br \/>\npost-mortem notes indicate that the post-mortem was carried out<br \/>\nbetween 5-30 p.m. and 8-20 p.m. on 21.4.2005. This would indicate<br \/>\nthat till that point of time names of the assailants were not known.<br \/>\nIf this be so, the FIR which purports to have been recorded prior to<br \/>\nthe time of post-mortem either may  not have been recorded at that<br \/>\npoint of time or the names of the assailants are subsequently<br \/>\nincorporated by fabricating a new FIR. The first informant is<br \/>\ninconsistent about the time of signing of the FIR. This would go to<br \/>\nthe root of the prosecution case. This would also lend credence to<br \/>\nthe allegation of the first informant in the communication that the<br \/>\nFIR is not recorded as given by her and that at least five persons<br \/>\nhave been falsely added.\n<\/p>\n<p>17.4\t\tThe<br \/>\nfirst informant does not disclose names of the assailants either<br \/>\nbefore the doctor or before the police on being inquired initially.<br \/>\nShe has even admitted that she did not know names of the assailants<br \/>\nat the time of the incident, but in the  next breath she realises the<br \/>\neffect of it and corrects herself by saying that she had the<br \/>\nknowledge of the names of accused assailants.\n<\/p>\n<p>17.5\t\tIt<br \/>\nis also worth to note that there are no marks of blood on the clothes<br \/>\nof the first informant, although she states that she took the victim<br \/>\nto the hospital. Considering the nature of injury and profuse<br \/>\nbleeding, as emerging from the evidence, it is difficult to believe<br \/>\nthat her clothes would not be stained even though she took the victim<br \/>\nto the hospital in an auto-rickshaw.\n<\/p>\n<p>18.\tThe<br \/>\nabove defects in the evidence of the first informant render her<br \/>\ndeposition not reliable. The investigation also does not inspire<br \/>\nconfidence. Possibility of false implication cannot be ruled out<br \/>\nadopting the safest standards of reasonable time. In our opinion, the<br \/>\ntrial Court erred in relying on the prosecution evidence and<br \/>\nconvicting the appellants. On same set of evidence it is accepted<br \/>\nthat accused Nos.8, 9 and 10 may not have been party to the incident<br \/>\nand on the same set of evidence involvement of others is accepted.<br \/>\nThe entire prosecution case hangs on scant evidence of first<br \/>\ninformant, Harshaben, which suffers from various defects as discussed<br \/>\nhereinabove and, therefore, the conviction cannot be upheld.\n<\/p>\n<p>19.\tThe<br \/>\nappeal deserves to be allowed and the same is allowed. The judgment<br \/>\nand order dated 22.11.2006 rendered by the learned Presiding Officer,<br \/>\nFast Track Court No.3, Bhavnagar in Sessions Case Nos.152 of 2005 and<br \/>\n215 of 2005 is  set aside. The appellants are acquitted of the<br \/>\ncharges levelled against them. They shall be set at liberty<br \/>\nforthwith, if not required in any other case. Fine paid, if any,<br \/>\nshall be refunded.\n<\/p>\n<p>\t\t\t\t\t\t(A.L.\n<\/p>\n<p>DAVE, J.)<\/p>\n<p>\t\t\t\t\t\t(HARSHA<br \/>\nDEVANI, J.)<\/p>\n<p>zgs\/-\n<\/p>\n<p>\t\t   \u00a0\u00a0\u00a0<\/p>\n<blockquote><p>\t\t   Top<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"<p>Gujarat High Court Chohla vs 2 It on 28 June, 2010 Author: A.L.Dave,&amp;Nbsp;Honourable Ms.Justice H.N.Devani,&amp;Nbsp; Gujarat High Court Case Information System Print CR.A\/416\/2007 18\/ 20 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 416 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MS.JUSTICE H.N.DEVANI ========================================================= 1 Whether Reporters [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-168280","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.0 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Chohla vs 2 It on 28 June, 2010 - Free Judgements of Supreme Court &amp; 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